Gender-Based Hostile Work Environment Claims Survive Summary Judgment Against Con Edison

In Grimes-Jenkins v. Consolidated Edison Company of New York, Inc., 2021 WL 1226658 (S.D.N.Y. March 31, 2021), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s gender-based hostile work environment claims under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.

As to plaintiff’s claims under Title VII and state law, the court explained:

Defendant has failed to show that there is no dispute of material fact as to whether Plaintiff was subjected to a hostile work environment because of her gender. A plaintiff may establish the “severe or pervasive” element by identifying either “a single incident [that] was extraordinarily severe, or … a series of incidents [that] were sufficiently continuous and concerted to have altered the conditions of her working environment.” Desardouin v. City of Rochester, 708 F.3d 102, 105 (2d Cir. 2013) (citation omitted). Although isolated incidents generally do not support a claim of discriminatory harassment, unless the incident is extremely serious, courts must be careful “not to view individual incidents in isolation,” but rather “[i]n assessing the evidence” the Court’s task is “to determine whether a rational juror could infer that a reasonable employee would have found the abuse so pervasive or severe as to alter her working conditions.” Redd v. N.Y. Div. of Parole, 678 F.3d 166, 176 (2d Cir. 2012).

A reasonable factfinder could conclude that Plaintiff’s work environment was objectively hostile because of her gender. Plaintiff contends, among other things, that: (1) in June or July 2013, Gibbs made comments such as, “look at [Plaintiff’s] ass, look how it sways from side to side,” while other people laughed at her, Pl. Dep. at 125:19–126:16; (2) in July 2013, Gibbs said that Plaintiff’s “big ass just stopped her from hitting the ground” after she fell off her chair, id. at 157:21–158:2; (3) in April 2016, Yang and Polanco followed Plaintiff into the women’s restroom and left the door open, 56.1 Stmt. ¶ 66; (4) in April 2016, Yang “charged at” Plaintiff after Plaintiff asked Yang to stop leaving the women’s bathroom door open, id.; (5) in 2014, Eric Vormittag, Plaintiff’s former supervisor, told her that she did not want a new position because she has “young kids and cannot help [her] family,” ECF No. 122 ¶ 50; (6) at an unidentified time, McEnery, Nolan, Galloza, and another employee told Plaintiff that they rated male mechanics higher than female mechanics and that males were “top barrel mechanics” and that women were “at the bottom of the barrel,” id. ¶ 63; and (7) at an unidentified time, McEnery told other employees that Plaintiff “keeps getting pregnant so that she can get time off the job,” SAC ¶ 100.

*6 Defendant contends that Plaintiff has failed to establish any evidence that some of the alleged incidents were motivated by gender, including the conduct of Gibbs, Polanco, and Vormittag. Def. Mem. at 15–16. The Court disagrees. What was said by Gibbs, and the actions of Yang and Polanco, “need not be motivated by sexual desire to support an inference of discrimination.” Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001). Plaintiff testified that Gibbs frequently made comments about her body in the presence of others. Pl. Dep. at 126:10–16, 157:13–158:6. Similarly, she alleges that when Yang, Barker, and Polanco left the bathroom door open, men would walk by and describe how the woman using the restroom “smelled.” Id. at 207:24–210:16. Plaintiff said that Yang did this every time she entered the bathroom, but would not do this to other women. Id.

Defendant points to the fact that Plaintiff has conceded that the conduct of Gibbs, Yang, and Polanco was born of their allegiance to Wells, Plaintiff’s former boss, who was transferred after Plaintiff accused Wells of sexual harassment. Def. Mem. at 15–16. But the intentions and motivations of Gibbs, Yang, and Polanco remain in dispute.3 And, “the question of whether considerations of the plaintiff’s sex caused the conduct at issue often requires an assessment of individuals’ motivations and state of mind…. [W]hen … fact questions such as state of mind or intent are at issue, summary judgment should be used sparingly.” Redd, 678 F.3d at 178 (quotation marks, alterations, and citations omitted). Similarly, although Defendant argues that Vormittag’s comment is gender neutral, “[f]acially neutral incidents may be included … among the totality of the circumstances that courts consider in any hostile work environment claim.” Alfano, 294 F.3d at 378 (quotation marks omitted). Thus, these incidents, taken as a whole, raise a genuine dispute as to whether they were sufficiently “continuous and concerted” to create an objectively hostile environment. Desardouin, 708 F.3d at 105.
Additionally, Plaintiff testified that she complained to management about the conduct of Gibbs, Yang, and Polanco, both formally and informally, and that she felt a lot of hostility. Pl. Dep. at 213:15–24. Plaintiff said that she was “so embarrassed” when Gibbs made “a huge scene about [her] body.” Id. at 123:9–15. A reasonable juror crediting her testimony could find that Plaintiff has satisfied the subjective requirement of a hostile work environment claim. Schaper v. Bronx Lebanon Hosp. Ctr., 408 F. Supp. 3d 379, 397 (S.D.N.Y. Sept. 30, 2019).

The court also found that plaintiff raised a triable issue of fact as to whether the harassing conduct should be imputed to defendant, noting, inter alia, plaintiff’s testimony “that some of her supervisors, including Nolan and Galloza, participated in the harassing conduct” such that “absolute liability would attach with respect to them” and that plaintiff “raised a triable issue of fact as to whether Defendant knew or reasonably should have known about harassment by non-supervisory workers, yet failed to take appropriate remedial action.”  [Internal quotation marks omitted.]

The court rejected defendant’s attempt to rely on the Faragher/Ellerth Defense, which required it to show “that (1) it exercised reasonable care to prevent and correct any harassing behavior, and (2) that the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm otherwise.” [Internal quotation marks omitted; cleaned up.] Among other things, defendant “fail[ed] to point to undisputed facts showing that the proper policies and procedures were followed in this case.”

Having concluded that plaintiff demonstrated a hostile work environment under federal and state law, she likewise did so “under the broad and remedial standards of the [New York City Human Rights Law].”

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